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Janitorial companies agree to clean-up their I-9 process

With all of the recent talk about increasing Form I-9 enforcement and new requirements, it’s easy to forget that the law also provides some pretty strict penalties for employers who go too far in their verification obligations. Yesterday, the Department of Justice sent a pretty clear reminder of this when they announced yet another six-figure settlement agreement for alleged discrimination in the Form I-9 and E-Verify process – this time, against two related janitorial services companies in California.

According to the press release, Paragon Building Maintenance, Inc. (Paragon) and Pegasus Building Services Company, Inc. (Pegasus) routinely requested lawful permanent residents to show a specific document (namely, their “green card”) during the I-9 process, while not making similar demands from US citizens. The companies were also charged with improperly re-verifying green cards when they expire, even though the Form I-9 rules prohibit this practice.

Under the terms of the settlement agreement, the companies must pay a civil penalty of $115,000 and setup a back-pay fund of $30,000 to compensate any eligible workers who lost pay due to the alleged improper documentary practices (which occurred during a two-year period). Both companies must also post notices informing workers about their rights, train their human resources personnel, and be subject to departmental monitoring and reporting requirements.

This latest settlement agreement from the DOJ serves as an important reminder for employers across the US: while you are charged (some say “deputized”) to ensure you hire and employ a legal workforce, you must also take care to avoid discriminating against any work-authorized individual based on the person’s citizenship, immigration status, or national origin.

Below is quick recap of an employer’s obligations with respect to reviewing documents, along with some best practices for revamping your compliance program.

I-9 Discrimination Basics

The Department of Justice enforces the anti-discrimination provisions of the Immigration and Nationality Act (INA) through a special unit in its Civil Rights division called the Immigrant and Employee Rights Section (IER). Formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), IER conducts broad employer investigations, hotline interventions (for one-off complaints), and various outreach activities, which include in-person and online trainings and a wide variety of educational materials.

One of the most frequently investigated areas in the I-9 context concerns “unfair documentary practices” (formerly known as document abuse), which occurs when an employer creates different I-9 document rules and requirements for employees based on their protected class. Below are four examples of prohibited I-9 practices:

Requesting that employees produce more documents than are required by the Form I-9 to establish the employee’s identity and employment authorization;

Requesting that employees present a particular document, such as a “green card,” to establish identity and/or employment authorization;

Rejecting documents that reasonably appear to be genuine and belong to the employee presenting them; and

Treating groups of applicants differently when completing the Form I-9, such as requiring certain groups of employees who look or sound “foreign” to produce particular documents the employer does not require other employees to produce.

In each one of the cases above, the employer must also have an “intent to discriminate” – an important requirement which was added to the INA in 1996. However, it’s important to note that IER recently clarified the “intent” equation in a final rule where they indicated that discrimination means the act of intentionally treating an individual differently based on national origin or citizenship status, regardless of the explanation for the differential treatment, and regardless of whether it is because of animus or hostility. Practically speaking, this means that an employer could engage in unfair documentary practices based simply upon their misunderstanding of I-9 requirements and procedures (such as demanding green cards from lawful permanent residents or re-verifying green cards when they expire).

Lawful Permanent Residents and the I-9 Process

Getting back to the case at hand, IER alleged that the janitorial companies broke rule #2 above by routinely required individuals attesting to be lawful permanent residents to present a “green card” during the I-9 process (even though other documents such as a driver’s license and unrestricted social security card would also be acceptable). The companies apparently did not have any such procedure for US citizens – thus forming the basis for the alleged discrimination. In addition, the companies allegedly re-verified these individuals as well when the green cards expired, which is strictly prohibited by the Form I-9 rules.

The IER’s “Independent” Investigation

The settlement agreement also notes that IER opened an independent investigation of each company based upon evidence that led it to believe that the employers had engaged in a “pattern or practice” of unfair documentary practices – a serious charge which is reserved for instances which involve multiple violations over a period of time. While it’s not entirely clear why the IER decided to audit the companies, it’s worth noting that many such “independent” investigations begin as a result of the employer’s use of E-Verify – particularly in situations where the data reveals that a high percentage of lawful permanent residents presented a green card as part of the verification process. For a recent example of this, see our article on two potato companies that landed in hot water with IER.

Best Practices

Now more than ever, employers are caught between a rock and a hard place – in their efforts to prepare for the upcoming wave of worksite audits under the Trump administration, there may be an inevitable swinging of the pendulum towards tougher document review standards and less employee protections. Fortunately, there are proactive steps an employer can take now to lessen the likelihood of an IER investigation while still maintaining compliance with Form I-9 rules. Here are three strategies to consider:

(1) Perform a top to bottom evaluation of your current I-9 hiring processes and procedures, paying special attention to how you typically inform employees of the documents required for I-9 verification. In doing so, you’ll also want to review your I-9 forms and look for any instances where you may have over-documented in section 2 or employed any special procedures for non-citizen employees.

(2) Work with experienced immigration counsel to develop policies, documentation, and training – the 3 best ways to ensure that your organization is on the same page when it comes to I-9 and E-Verify processing. Counsel can also help you resolve any past I-9 or E-Verify compliance failures and provide advice with respect to any alleged claims of discrimination.

(3) Begin using a smart electronic I-9 and E-Verify software solution, which helps your hiring and HR managers comply with the often confusing (and conflicting) requirements of the law. A well-designed system will alleviate many I-9 and E-Verify concerns by preventing mistakes, standardizing practices, and guiding employers on the proper procedure for requesting I-9 documentation. Be careful though because not all I-9 systems are created equally. You’ll need to make sure the system is fully compliant with the I-9 regulations and treats employees consistently, regardless of their status.

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John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.